(EDITOR'S NOTE: Charles Levendosky, editorial page editor of the Casper (Wyo.) Star-Tribune, has a national reputation for First Amendment commentary. His e-mail address is
levendos@trib.com.)

c. 1998 Casper (Wyo.) Star-Tribune

Last month, U.S. Food and Drug Administration officials ordered the destruction of three books about an herb and its use. Never mind the First Amendment. Never mind upholding the U.S. Constitution.

The herb at the center of this controversy is Stevia rebaudiana Bertoni, better known as stevia or "honey leaf." Under the law, stevia can be marketed as a dietary supplement like a vitamin but not as a food additive.

The herb is said to benefit the health of those who take it. The FDA considers stevia safe to simply swallow as a supplement (powder or liquid), but unsafe when added to food or drink.

The FDA goes ballistic when it thinks a company is selling stevia as a natural sweetener --- a property for which the herb is well-known in Paraguay and Brazil where it grows.

On May 19, Compliance Officer James Lahar of the Dallas, Texas district office of the FDA, faxed
a letter to Oscar Rodes, president of the Stevita Company in Arlington which sells the herb. The letter states, in part: "... a current inventory must be taken by an investigator of this office, who will also be available to witness the destruction of the cookbooks, literature, and other publications for the purpose of verifying compliance."

The books in question address stevia's sweetening property --- a big no-no, in the eyes of the FDA. Stevia could be a major economic threat to established companies that manufacture artificial sweeteners. It's calorie free.

In an interview Friday, Rodes said that when he received the FDA fax, he called his attorney in Washington, D.C. The local FDA officers arrived a few hours later. According to
Rodes, he said that he would not destroy the books unless his attorney advised him to do so. However, Rodes told them, if the FDA officers wanted to destroy them, he would merely use his video camera to record the event. The FDA officers left.

Rodes also claims that the FDA officials told him that they wanted Rodes to recall all the copies of the books he had already sold. According to
Rodes, that amounts to more than 4,000 copies.

Lahar now claims he never ordered the books destroyed. In an interview, he said, "The sentence reads to the effect that if books are going to be destroyed, we'd like to observe it."

When asked then where the idea for destroying books came from, Lahar said he wouldn't answer.

He responded, "I've have been asked to refer calls to our press office in Washington. ... We all have a boss."

Asked who made the decision to silence him, Lahar referred to FDA Associate Chief Counsel for Enforcement Annamarie Kempic in D.C. Kempic did not return calls.

When the D.C. press office was called, press officer Judith Foulke said she couldn't answer any questions about this case because the matter was still under investigation --- a convenient Catch 22. She couldn't even comment on the destroy-the-books letter.

Another wrinkle popped up. Julian Whitaker, a physician, asked Rodes if he could purchase the three stevia books in question for research purposes.
Rodes, thinking he might violate FDA orders by selling the books to the doctor, refused --- and explained why.

The doctor called renown First Amendment attorney in Jonathan W. Emord in Washington, D.C., to see what he could do. Emord called the FDA to advise the agency that he planned to initiate legal action to free the hostage books.

Kempic then faxed a letter, dated June 5, to Emord in which she says that Rodes can sell the books to Emord's client and states: "... we have contacted Mr. Rhodes (sic) and advised him not to destroy the books at this time." The "at this time" tells it all.

But pressure on the FDA had begun to mount. In a letter faxed to Emord three days later, Kempic changed her tune. She writes: "The FDA Dallas District Office informs me that it was Mr. Rodes who chose the option of destroying the books."

Not so, says Rodes, emphatically. Why, after all, would he want to destroy thousands of dollars worth of inventory?

Rodes changed the labels on his stevia products so that they conform to the strictest FDA regulations. They no longer suggest any other use for
stevia. A label that said "tabletop ready" was replaced because this implies that stevia in these packages could be used as a flavoring ingredient.

Apparently, however, the presence of the books remains a critical issue for FDA officials.

Rodes' company is one of the nation's major distributors of stevia. The FDA confiscated two shipments of the herb that belong to
Rodes. Those shipments have yet to be released. This action is costing Rodes business and money.

The FDA oversees the sale and distribution of food and drug products for the safety and health of the nation. The agency sometimes acts overly cautious. Although stevia has been used as a food additive without ill effects in Japan for more than 25 years, the herb has not, according to the FDA, undergone sufficient testing in this country to assure that it isn't harmful if used as an additive.

According to FDA officials, the herb stevia can be "adulterated" merely by being in the presence of information that reveals its sweetening property.

Dallas FDA agents even went so far as to mark up copies of the offending books so that they couldn't be sold. Clearly these agents violated the law. The FDA has no legal authority to destroy books. None whatsoever --- no matter whose economic interests are at stake.